http://www.youtube.com/watch?v=93XokN3DPtk

National
Food stamp recipients struggle through the month

Associated Press
Originally published 03:00 p.m., May 17, 2008
Updated 03:00 p.m., May 17, 2008



Danielle Brown stands outside a South Side market at midnight, braving the spring chill for her first chance to buy groceries since her food stamps ran out nearly two weeks ago.

For days, Brown has been turning cans of "whatever we got in the cabinet" into breakfast, lunch and dinner for her children, ages 1 and 3, who finished off the last of the milk and cereal long ago.

"Ain't got no food left, the kids are probably hungry," said Brown, a 23-year-old single mother who relies heavily on her $312 monthly allotment of food stamps a ration adjusted just once a year, in October.

This is what the skyrocketing cost of food looks like at street level: Poor people whose food stamps don't buy as much as they once did rushing into a store in the dead of night, filling shopping carts with cereal, eggs and milk so their kids can wake up on the first day of the month to a decent meal.

Here's what it looks like another way: The number of Americans relying on food stamps has climbed 6.1 percent in the past year, from 26.1 million in February 2007 to 27.7 million in February this year. Every state except for Arkansas and Colorado saw the food stamp rolls increase, led by Nevada and Florida both also hit hard by the housing crisis.

The sputtering economy, persistent unemployment and the mortgage crisis have all contributed to the increase. The U.S. Agriculture Department expects the overall number of participants to reach 28 million next year.

It all paints a picture that experts say is becoming more grim every month.

"People with incomes below the poverty threshold are in dire straits because not only are food prices increasing but the food stamps they are receiving have not increased," said Dr. John Cook, an associate professor at Boston University's medical school who has studied the food stamp program, particularly how it affects children.

On the South Side of Chicago, what it means is that people like Danielle Brown wait for the stroke of midnight, when one month gives way to another and brings a new allotment of food stamps.

Dennis Kladis began opening his family-owned One Stop Food & Liquors once a month at midnight nine months ago to give desperate families a chance to buy food as soon as possible.

"I'm telling you, by the end of the month they're just dying to get back to the first," said Kladis, who has watched other area stores follow his lead. "Obviously, they are struggling to get through the month."

For Lynda Wheeler, who receives $281 in food stamps each month, the rhythm of life has been one of shopping for food, running out of food and turning to churches, food pantries and friends for food. And all the while, she is doing things like cutting milk with water to make it last a bit longer.

"You get it on the first and it runs out by the 14th and 15th," said Wheeler, a single mom who brought her 14-year-old son and 2-year-old daughter shopping at midnight with the Link card, the Illinois version of food stamps.

The consumer price index for food rose 5 percent last year, the highest gain in nearly two decades. It is especially grim news for the poor.

Start with milk. Between March 2007 and this year, a gallon of milk jumped from just over $3 a gallon to nearly $3.80, according to the U.S. Bureau of Labor Statistics. During the same period, eggs climbed from about $1.60 a dozen to $2.20. Meanwhile, everything from white bread to chicken to tomatoes is more expensive than it was last year.

Just last summer, the maximum food stamp payment $542 a month for a family of four with a gross income of no more than $2,238 was enough to cover the USDA's "thrifty food plan," a bare-bones diet that meets minimal nutritional needs. Studies show that allotment now falls about $25 short, Cook said.

Because food stamp allotments are adjusted every fall based on the federal food inflation rate, recipients are months away from getting any relief. But even when that relief comes, advocates say, it won't come close to keeping pace with rising costs.

Meanwhile, demand is growing. The number of U.S. food stamp participants grew by 482,000 between October and February; in the same time period a year earlier, the figure dropped by 135,000.

And just getting to the store is a lot more expensive. Since October, the cost of gas has shot up nationally from $2.70 a gallon to $3.62, according to the Lundberg Survey, a petroleum market research firm. With 31 cents of that jump in the last month alone, Lundberg says there is a good chance the price will top $4 a gallon by the end of the summer.

That means the poor are spending money on gas that they might otherwise have used for food sometimes striking deals with people who have cars to buy them food using the only currency they have.

"Even if they don't have a car, they are using food stamps just to get a ride to the store," said Dan Block, a Chicago State University geography professor who has studied grocery store shopping in Chicago's poorest neighborhoods.

High gas prices were the reason 58-year-old Floyd Ogalvie made the 15-minute trip for the midnight opening this month in his electric wheelchair.

"My old lady, she drives, but she didn't want to drive to save gas," he said.

For starters, gas prices are not part of the equation. USDA spokeswoman Jean Daniel did say that the agency is trying to help and noted recipes for inexpensive meals are posted on the agency Web site.

But she said there is only much food stamp programs can or were meant to do.

"Food stamps were designed to be a supplement to the food budget, (they) were never intended to be the entire budget," she said.

If the USDA pulls $1.7 billion from a contingency fund of $6 billion this year to support the food stamp program, as it expects to do, that would be the largest withdrawal since $2 billion was pulled out after Hurricane Katrina in 2005. The program saw a surge in demand that year as well, with the number of recipients climbing to 27.9 million in October and 29.8 million in November.

On Thursday, the Senate passed a five-year, $300 billion farm bill that includes $200 billion for nutrition programs such as food stamps and emergency food aid for the needy. Daniel said it was too early to say how the at will affect benefits to food stamp recipients and she knew of no provision in the bill to make the annual adjustment before the fall.

In the meantime, there are signs that the same people shopping at midnight on the first of the month may be getting hungrier sooner.

Maura Daly of America's Second Harvest, a national network of food banks, said food banks are seeing a 20 percent increase in the number of people turning to them for help. Much of that increase, she said, comes at month's end.

Diane Doherty, executive director of the Illinois Hunger Coalition, said she's seeing people more frantic for food than ever.

"The level of desperation is just frightening," she said. "People are calling, saying they have no idea what they are going to do."

But even as demand is rising, many food panties nationwide have been forced to cut back on the amount of food given to individual families because higher fuel costs and commodity prices have sliced into private donations to the pantries, Daly and others say.

What that means is the hungry are casting an ever wider net for food, showing up at pantry after pantry.

"We're seeing people come to us from further and further outside our geographical boundaries, (from) as far away as Indiana and southern Wisconsin," said Greg Nergaard, coordinator at Lakeview Pantry on Chicago's North Side. "What they say is they didn't know where else to go."

For now, many of the needy, including many in Kladis' store pushing carts laden with soda pop, bags of cookies and chips much of it cheaper than healthier food are doing what they can to stretch their shrinking buying power.

"The bottom line is, a mother trying to feed her kids is not really picky about what she puts in their bellies," said Dan Gibbons, executive director of the Chicago Anti-Hunger Federation. "She just wants them full."

On the Net:

USDA: http://www.fns.usda.gov/fns

Advocacy groups: http://www.secondharvest.org, http://www.ilhunger.org and http://www.antihunger.org

A history of food stamps in the United States

1939-1943: People buy orange stamps equal to their normal food expenses; for every dollar of orange stamps purchased, they receive an extra 50 cents in blue stamps to purchase surplus food.

1961: President John F. Kennedy signs his first executive order to expand food distribution and announces on Feb. 2 that food stamp pilot programs will be initiated.

1964: The programs expanded from eight areas to 43, with 380,000 people in 22 states participating. President Lyndon Johnson requests that Congress pass legislation making the Food Stamp Program permanent and signs into law the Food Stamp Act of 1964.

1965-1971: The number of people receiving food stamps climbs past 561,000 in 1965, then beyond 1 million in 1966, 3 million in 1969 and 10 million in 1971.

1974: The Food Stamp Program begins operation nationwide July 1.

1988: Development of electronic benefit delivery systems begins, leading to issuance of plastic cards instead of paper food stamps.

2008: The total cost of the program exceeds $33 billion, up from from $2.8 billion three decades ago, and 27.7 million people participate as of February.

Source: United States Department of Agriculture.

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(52) User Comments:
Reply to this Post | Suggest removal
related links Posted by 254809 on May 17, 2008 at 3:18 p.m.

The sputtering economy???
In April Only, Americans spent 1.23 BILLION on gaming systems....up 47% from last year....(look this up on foxnews.com)......and in the first weekend, Iron Man made $100 MILLION PLUS!!!! And today, I could not find a parking spot at my local mall(I live outside of CC)....sputtering economy....please...

Persistent unemployment ???
Unemployment is actually down at this time....

The mortgage crisis???
Those ARM Mortgages are only 3% of ALL mortgages in the US...

Give me a break......people just need to get off their lazy butts and get a job....quit having kids that THEY CAN NOT afford....stop buying $100 shoes and $300 purses....I can go on and on...

PS. Ms. Brown said "Ain't got no food left, the kids are probably hungry,".....you should of said, "I have no food left...." .....please learn to speak correctly, then maybe you can will be able to get a decent job....
Reply to this Post | Suggest removal
related links Posted by 348998 on May 17, 2008 at 3:33 p.m.

In Corpus she would have just sold her food stamps for 50 cents on the dollar to buy booze and drugs. It happens everyday!

P.S. Don't complain about something you are getting for free.
Reply to this Post | Suggest removal
related links Posted by 237092 on May 17, 2008 at 3:40 p.m.

in response to 254809

AMEN! I like what the article said about food stamps being designed to supplement the food bill not cover the entire thing.

These people, especially the young ones and those who are not physically disabled, should be ashamed of themselves. Grocery carts full of soda pop and chips?!?! What happened to kool-aid?? What about top roman noodles???

Quit having kids you can't afford and work and get a part time job if you need to.
Reply to this Post | Suggest removal
related links Posted by 454522 on May 17, 2008 at 4:40 p.m.

You all need to think about it. One day it could be you on food stamps. We should not make fun of people on food stamps, we all are going in that direction. The food stamp program is a wonderful program. I am a single mom on looking in to food stamps, are you going to make fun of me ?
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related links Posted by 248355 on May 17, 2008 at 4:51 p.m.

in response to 254809

"PS. Ms. Brown said 'Ain't got no food left, the kids are probably hungry,'.....you should of said, 'I have no food left....' .....please learn to speak correctly, then maybe >you can will be able< to get a decent job...."

Perhaps, you might heed your own advice and learn how to write correctly. Just a suggestion.

-dave
a.k.a. the grammar police
Reply to this Post | Suggest removal
related links Posted by 234453 on May 17, 2008 at 4:51 p.m.

in response to 454522

I personally do not make fun of those who truly need temporary assistance. What I do make fun of, turn my nose up at, etc., are: those who sell their Lone Star cards for 50 cents on the dollar for drug money; those who abuse the system by continuing to have children they cannot afford to feed and take care of; and the sterotype we have all seen that buys food with the Lone Star Card and then loads it into a late model Lincoln or Cadillac.

If a person uses food stamps as a step up out of poverty or a bad situation - more power to them, but those families who spend a lifetime in the system and spread the "why work" mentality to the next generation - yes I have a serious problem with that.
Reply to this Post | Suggest removal
related links Posted by 710826 on May 17, 2008 at 5:24 p.m.

in response to 454522

You are right, absolutely right.

There is a lot to the saying "there but for the grace of God, go I".

There are some things that you can do in the interim to help. You mention being a single mom, are your child or children receiving proper child support, there are laws that can and will help with this?

Please do look into the many organizations in Corpus Christi that can lend a helping hand and I repeat, helping hand, not a handout that will make you feel as if you are losing your self respect and have to be concerned with " I am a single mom on looking in to food stamps, are you going to make fun of me ?"

God help and God bless.
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related links Posted by 254809 on May 17, 2008 at 5:28 p.m.

in response to 248355

thanks for the correction.....
Reply to this Post | Suggest removal
related links Posted by 348998 on May 17, 2008 at 5:34 p.m.

in response to 454522

I will make fun of you.

I grew up with two other siblings and a single mom she worked liked crazy, we wore cheap clothes and did not own a television. She tought me that although it easy if you work hard you can make it your own.

Get a second a job and teach your kids some character.
Reply to this Post | Suggest removal
related links Posted by 425944 on May 17, 2008 at 5:36 p.m.

I know a fellow that said he was going to buy T-bone steaks with the last of his food stamps. Now he's a nice enough guy, but he was going to buy steaks for him and his friends.

I just shook my head in dismay.

My family makes pretty good money, but we only buy T-bone steaks when there is a special occasion. At 7 dollars a steak for 4 people and the high price of propane or charcoal brickets to cook them, well, people who are on the welfare program should be spending their government handout more wisely.
Reply to this Post | Suggest removal
related links Posted by 711310 on May 17, 2008 at 5:40 p.m.

Before she decided to have those children, it would have been nice if she had asked me if I minded supporting them for her.
Reply to this Post | Suggest removal
related links Posted by 241057 on May 17, 2008 at 5:44 p.m.

There are places to go get food for free. Nobody has to starve to death. Check out community kitchens.
Reply to this Post | Suggest removal
related links Posted by 463408 on May 17, 2008 at 5:59 p.m.

Kudos to the USDA spokesperson -- she wz quoted as saying the Food Stamp program was meant to supplement NOT BE THE ENTIRE FUNDING FOR FOOD.

The government is an enabler. More and more people think the government/state is obligated to help. I can understand if a TAXPAYER falls on bad times, for ex: get sick, get laid off on so on. But to have 4 kids by 3 daddies and/or live with your baby daddy or worse their grandma WTF?

I think if you get funding and are a single parent, #1 you need to practice birth control, and if you can't get sterilized, because I have only 2 children because guess what??? it is expensive--- so if i can practice birth control federal receipents should be mandated too.

Also federal receipients should be able to get their funding after they prove they have a full time job and/or school 12hrs mininum. My mother worked and went to school at night and we did not have federal asistance. We learned not to ask for anything, we knew food and bills came 1st. Once we turned 16 we got a job and helped out like real families should.

so saying you are single parent is a cop out....not a good excuse.
Reply to this Post | Suggest removal
related links Posted by 447776 on May 17, 2008 at 6:17 p.m.

Gee, I have to pinch pennies when I go to the grocery store too. Oh yeah, I also have to go to work every day too. Sorry, not feeling sorry for the stampheads. All you single moms out there made the concious decision to sleep with the "fathers" of your kids. I had nothing to do with it so why should I have to pay for your mistake. When I make a mistake I have to pay for it myself. Go get a second job and take care of your kids. Call me cold and heartless but I've seen too many people buying crablegs and steaks with lone star cards. Screw that.
Reply to this Post | Suggest removal
related links Posted by 704275 on May 17, 2008 at 7:59 p.m.

When my husband turned into a drug addict, I had no choice but to leave, go on food stamps and go back to college. After college, I got a good job and got off food stamps.....Temporary and supplemental are the key words. Most women who receive food stamps are also eligible for WIC....WIC controls exactly what you can buy with their vouchers. You get milk, cheese, juice, eggs, and cereal on WIC. In addition, they give you baby formula and baby food.
I do agree that the deadbeats need to get a job!
As far as child support, it can be drawn up....enforcement is a different matter. I am currently owed $15,000 for one child. The Attorney General can't do much because my ex moved out of state. When they locat him at a job to garnish, he quits. He hasn't filed taxes in several years because they garnish his tax returns for his child. If they can't be served, then the AG can't take them to court. The AG is lame!
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related links Posted by 711040 on May 17, 2008 at 8:11 p.m.

I'm surprised. There seems to be a lot of intelligent people commenting on this article. I figured that there would be a bunch of liberal cry babies blaming Bush and everyone else for the higher price of food.and the condition that the stamp holders find themselves in. I retired after taking care to save a few dollars and plan how I would live on my fixed income. The higher prices for food is a problem, but I know I will find ways to deal with it without crying to a liberal government for help.
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related links Posted by 230619 on May 17, 2008 at 8:11 p.m.

Post 454522- If you are looking at getting food stamps, why is your lazy butt using a computer to blog when you should be looking for a second or third job. If you need more than three jobs to support yourself, you either eat too much or you shouldn't have had that many kids.

Why hasn't anyone blamed Bush yet?

Vote Democrat: It's easier than working!
Reply to this Post | Suggest removal
related links Posted by 253187 on May 17, 2008 at 9:05 p.m.

The problem with buying junk food because it is cheaper...is that it doesn't satisfy hunger or nutrition. I can eat a whole bag of Oreos and not feel full! In the article, it mentioned that she has a cart full of junk. In the long run, this doesn't pay off because the family eats junk quick and goes looking for more.

Maybe, some education before giving the food stamps. A film, class, etc.
Reply to this Post | Suggest removal
related links Posted by 463342 on May 17, 2008 at 9:17 p.m.

I dont feel sorry for "poor" people. There are no poor people here. Just irresponsible, or lazy people here. The people who claim to be poor are rich compared to people who are really starving around the world.

I was "poor" once. I was being irresponsible and had no job, no money, no food, no car. But because I was white, and a male, they denied me any sort of food stamps, or help of any kind. What does that tell you about the people complaining that the welfare that they get is not enough.
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related links Posted by 454522 on May 17, 2008 at 10:33 p.m.

post 253187- For your information I do work 3 jobs. I work full time, clean a church and clean people's house's. how do you like that. i also desire so time with my 9 month old. so you get a life. it's none of your business how many children i have. you must not have any thing to do. so their back off single mother's.
Reply to this Post | Suggest removal
related links Posted by 711762 on May 17, 2008 at 11:01 p.m.

It makes me sick! Most of the people you see using food stamps then pull out a wad of money to pay for other stuff it does not cover. Then out in the parking lot they get in a 08 lincoln or some other high end vehicle. Its just like anything else, if you know someone who works at these agencies you can get all the free money us hard working taxpayers have to pay. They should cancel welfare and food stamps and then maybe these lazy bums would have to get a job.
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related links Posted by 448291 on May 17, 2008 at 11:36 p.m.

There are one out of ten people working that get food stamps. I work two jobs and make $35,000 and I'm having a hard time making ends met. SO, for you cry baby's food stamp people. You need to stop bit----- and stop having kids so you can get more $$$$$$$$ on your food stamp card and go get a JOB. "O" buy the way- I would not even think of getting food stamps. I'm not a low life, like the nine non-working low life bit----- cry baby's. and driving a $40,000 plus car or truck with FIVE very very FAT overweight plus crying kids getting in eating candy. There is a job out there for you. All you have to do is get you overweight butt out there and find it.
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related links Posted by 252944 on May 17, 2008 at 11:43 p.m.

People make a carreer of the food stamp programs. I think they should only allow them help for 6 months. My husband and I spend 200 a wk buying groceries. It upsets me when people stare at my cart as if I was paying with Lone Star. Fortunately we both work and are able to provide for our kids. Some of these loosers have boyfriends going grocery shopping with them and buy the most expensive meats when we have to settle for chicken and ground beef at times. The government needs to put a stop to this. I feel for the children, but not for the lazy mothers and fathers who depend on the system!!
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related links Posted by 295476 on May 18, 2008 at 12:28 a.m.

Think Money Buys Happiness?

Now, We Meet The Real Losers.

Quit whining and do something about it

and while yall are talking bout welfare why not address the corporate welfare, the fraud and the corruption transacting as we speak right here in South Texas. Go after someone who legally robs the Taxpayers exponentially compared to allof the FS clients combined.

You guys sound like a bunch of hypocrites

Are You Haters Having Fun Yet?

BWHAHAHAHAHAHAHAHAHA!!!!!!!

LOL ;)
Reply to this Post | Suggest removal
related links Posted by 248355 on May 18, 2008 at 3:22 a.m.

in response to 254809

You are very quite welcome.

Two of my stupid pet peeves are misspellings and grammatical errors.

-dave
Reply to this Post | Suggest removal
related links Posted by 245502 on May 18, 2008 at 3:47 a.m.

I would think you'd be more interested in the content of the post as opposed to checking for grammatical and spelling errors.

Oh..and btw.."very quite" welcome?
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related links Posted by 711521 on May 18, 2008 at 4:58 a.m.

Get over the critical pet peeves. Not all readers have the background you do Dave. You endup being very haughty and demeaning to those just attempting to simply express themselves.

I agree about people abusing the food stamp system. These people can eat steak all month long. I don't use food stamps and generally eat only one meal per day. I budget what I eat and purchase cheaper items frequently. Prices are rising and the easy street is running out. Get a job and take birth control! or better yet get neutered.
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related links Posted by 233751 on May 18, 2008 at 7:10 a.m.

The Lone Star card should have limitations on what it can purchase just like the WIC program. Staples like bread, milk, pasta, beans, veggies, certain cheeses and meats would be allowed. No cookies, sodas, chips, high end meats and cheeses. This would stop much of the abuse. Our system has the technology to do this now and no one is complaining about the WIC system, it works!
Reply to this Post | Suggest removal
related links Posted by 276111 on May 18, 2008 at 8:14 a.m.

I saw a couple buy groceries with a lone star card then loaded it up on a full dress Harley which cost at least $22,000 and was a newer model. Geez!!!! Shared prosperity at its finest. Darn democrats!!!!!
Reply to this Post | Suggest removal
related links Posted by 245313 on May 18, 2008 at 8:26 a.m.

I am so disheartened to read the comments posted here. So quick to judge, so quick to condemn, so quick to know it all. Must feel very proud of yourselves because everything YOU do is right....just because YOU do it means everyone else can or should. Get a grip people! I have some advice for you....if it upsets you to see the person in front of you in the grocery line using a Lone Star card, look the other way! Not all "poor" people are lazy, welfare cheating, abusers of the system....many have happened along something called LIFE! Instead of being so quick to condemn, try reaching out a helping hand. Truly, if this is how some of you really think, I pity the day for you that Jesus Christ comes back to this earth!
Reply to this Post | Suggest removal
related links Posted by 246009 on May 18, 2008 at 8:53 a.m.

The need to get J-O-B and stop making a way of life of all the freebies the government offers. There are plenty of jobs out there, it may not be "exactly" what you want to do but it's a job. You choose the path you want to go. Everyone has the same opportunity to succeed in life, IF they choose. Along with all the freebies are grants for a better education. Do something about it.
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related links Posted by 408032 on May 18, 2008 at 10:33 a.m.

There is nothing wrong with the food stamp program. To me that is just free money. The goverment takes my money in taxes and I just get it back in a lonestar card. My family has survived many decades on food stamps and will continue to survive for more years to come.
Reply to this Post | Suggest removal
related links Posted by 260556 on May 18, 2008 at 11:05 a.m.

I'm not about to bash all those food stamp recipients out there, BUT I am about to bash the ones who are receiving them by deceiving the system. I'm all for some people getting them when they are in need. (It doesn't matter how many kids or if you're a single parent ) BUt I've seen so many young ( late teens to early 40s) just so happy to be on the system. They are content for all the freebies they get. I know someone who receives about 300 a month (for one 2 yr old) PLus her 2 bdrm apt is only $50 a month. Not to mention a decreased rate for her electricity. This person is only 21yrs old. C'mon, at that age you're old enough to get a job and make a better life for yourself. (Did I mention since she's not married, she conveniently has her "working" boyfriend live with her and they have all of his income to spend on anything. This is the type of stuff that is WRONG!!! If the government increases the amount of food stamps, then they need to increase the minimum wage rate for ALL hard working individuals!!! What do ya'll think?
Reply to this Post | Suggest removal
related links Posted by 244675 on May 18, 2008 at 11:55 a.m.

This is a classic vicious circle. The more people on welfare programs, the more difficult it is to introduce any sort of welfare reform. Most of these folks would probably never bother to vote unless it's against a candidate proposing government assistance limitations. I'm all for helping people get out of a tough situation; I was in a bad way after my now ex-wife racked up 10K in credit card debt behind my back then took off with no intention of paying any of it. It was a struggle, but I sacrificed and got through it without gov't assistance or destroying my credit, now I'm doing fine. Career welfare is inexcusable and those who practice it should be ashamed. This is supposed to be the land of opportunity, not the endless free lunch.
Oh, and the previous poster who said it was none of our business how many kids she/he has, business is defined as the transfer of funds for goods or services. If my funds (taxes) are used to help support children you can't afford, that makes it my business to a degree. If you don't rely on the gov't then have all the kids you want. Otherwise deal with the consequences on your own, especially the folks who continue to have more children while already on the dole.
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related links Posted by 234453 on May 18, 2008 at 12:04 p.m.

in response to 408032

And just how much have you paid in taxes as opposed to how much you scammed the government out of during those decades you are so proud of? You are a classic example of what is WRONG with the system!
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related links Posted by 463408 on May 18, 2008 at 1:49 p.m.

in response to 454522

If you are receiving federal assistance - Medicaid to deliver the baby and get prenatal care, WIC, Lone Star Card then I hate to burst your bubble it is MY business, no let me correct myself it is EVERYONE's business how many children you have.

If you receive no assistance, be my guest and pop those puppies out. Otherwise get your tubes tied, get some job training and get a job so you and others like you can be SELF-SUFFICIENT and hopefully stop the "cycle" of poverty your children will be repeating.
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related links Posted by 463408 on May 18, 2008 at 2:05 p.m.

in response to 408032

Food stamp program is NOT free, you are abusing taxpayer dollars... and I doubt you contributed into the "system" more than you are taking out.

Lone Star is supposed to be TEMPORARY-- not a way of life. If you were surviving, you would not need the Lone Star card, you would be "surviving" on your own.. but losers like you will continue to drain the "system" and people that really need it get the bad rap.
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related links Posted by 233913 on May 18, 2008 at 2:19 p.m.

We could hire a bunch of retiree's to work part time for the government to supplement their social security ... and there only job would be to do investigative work on every food stamp and welfare recipient to see, what kind of car do they own, what have they purchased over the time period that they have been on welfare and handouts, who are they really living with - is there an income earner living in their home.... did they use the food stamps or sell them for cash to that Harley person.. so they could buy cigarettes and beer?... and if the answer is that they are an abusive, bottom feeder... living off our tax dollars while making no effort to be responsible for themselves... then cut them off. It would be money well spent.
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related links Posted by 699932 on May 18, 2008 at 3:54 p.m.

My income is close to 45K yearly- My daughter and I eat Banquete meals and Ramen Soup and we use tuna quite frequently. My daughter and I eat out either Friday or Saturday to rest from homecooked meals. Sunday we start all over again with simple foods and we eat out of napkins most times. My water bill doesnt shock me anymore. I like expensive clothing and expensive shoes and jewelry and I have a love for my expensive vehicle(paid in full). My daughter makes excellent grades all year so with her allowance she saves it for whatever she desires, which is Rock N Roll band t-shirts.

We have never ever asked for any governent handouts whatsoever and quite frankly- most of these people who are receiving food stamp vouchers I would like to think the great majority do temporary.For those who use the system and live off the government are those who are apparently lazy and have never been caught. The last time I ate steak was about three weeks ago! Lobster- whats that? My daughter and I survive just fine without expensive meals.My grocery bill makes me smile! Anyone need lessons on how to stretch a buck? Let me know, I have tons of reciepes ( providing you like tuna that is) lol
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related links Posted by 295476 on May 18, 2008 at 6:19 p.m.

Yeah right you got the idea,

"We could hire a bunch of retiree's to work part time for the government to supplement their social security ... and their only job would be to do investigative work on every Corporate Executive and Corporate Welfare recipient to see what kind of Boards they sit on, what kind of Property they own, what kind of Property their family owns and when and where in the hell did they get that crystal ball from? How many grants and non competing contracts have they received and the commonality amongst them all. Lets not forget the business expenses and the petty cash. What have they purchased over the time period that they have been on Corporate Welfare and / or receiving Government Contracts, Non competing "Business" handouts, What is the actual value of their home (not the appraised one), is their property tax appropriate for the actual value of their home, who are they really sleeping with - .... did they abuse or peddle their influence or for undisclosed amounts of cash under the table? How many times government grants included or paid for whiskey and women? And if the answer is that they are an abusive, bottom feeder... living off our tax dollars while making no effort to be responsible for themselves... then fine the heck out of them. It would be money well spent."
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related links Posted by 711504 on May 18, 2008 at 7:06 p.m.

I wish that I had $312 a month of FREE food for my family!

I struggle to pay my taxes, earn a living and get by on about $175 a month of food for a family of four. Thank God for Angel Food!

I really have NO SYMPATHY for those welfare addicts who milk the government for as many handouts as Barack Hussein Obama and his wicked racist minions will give in exchange for votes!

If you want to eat more -- GET A JOB!!!!
Oh wait...welfare recipients eat better than most teachers!!!!
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related links Posted by 295476 on May 18, 2008 at 7:31 p.m.

Go wait in the lines, go through the application specificities, allow yourself to be jerked around by the program administration and then comeback and tell us how lucrative & "free" the Welfare Program is.
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related links Posted by 295476 on May 18, 2008 at 10:40 p.m.

Why be a teacher if you have this bias against people who are "welfare" addicts as you claim?

It is teachers like you who have no intention of allowing a "welfare" student to succeed.

What kind of teacher are you?
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related links Posted by 237092 on May 18, 2008 at 11:52 p.m.

I wondered how many participants in the Buc parade this year use the Lone Star card. Especially the low rider cars with the girls up front and the kid(s) on their lap. I couldn't help but shake my head in disgust. Your tax dollars that provide free grocery money in the form of Lone Star cards, medical and dental insurance (Medi-caid) and WIC also probably helped provide those daddies all the cash they needed to pimp their rides.....
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related links Posted by 295476 on May 19, 2008 at 12:46 a.m.

All you fretting about what others got, know that the insurance company that charges you for health insurance is subsidized by the poor people.

Look it up.

Citations in draft or construction of an opinion is that considered "plagerism"? OR "selective syntax"?

Construction, reproduction, or citations of another's opinion used to formulate an opinion of a collage of many others different opinions written in a context that is irrelevant to the current opine if not for the "literally" wording to justify the wording when their "house keeping" issues are

Stop cornyn. dot com.......or are we so lo we mow our plot?

TLR~101
Posted on June 3, 2007 at 04:17:44 AM by d1

If you are injured, A testicle accidently amputated....or a sponge left in your belly during an appendectomy.

It will be a poetic justice for you to employ and fail 2 remember ur words....." be a huge mistake! Big PI trial lawyer".
Or are you special?

if you live through the "mistake"

wATT VOLTAGE is the current moving.....legal time or reality?

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. AP-72,556



VICTOR HUGO SALDANO, Appellant


v.


THE STATE OF TEXAS


ON DIRECT APPEAL

CAUSE NO. 199-80049-96 FROM THE 199TH DISTRICT COURT

COLLIN COUNTY

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, and Holcomb, JJ., joined. Price, Womack, and Johnson, JJ., concurred. Cochran, J., concurred in points of error one, two, three, and five but otherwise joined the opinion of the court.

O P I N I O N


In 1996, appellant was convicted of capital murder and sentenced to death. The conviction was upheld, but the death sentence was overturned in federal habeas corpus proceedings based on a procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial. (1) In 2004, appellant was again sentenced to death at another punishment hearing in state court. Appellant raises 66 points of error on direct appeal to this Court. Finding none of these points to present reversible error, we affirm.

The record reflects that, since his 1996 trial, appellant has resided on death row, where he has committed numerous acts of misconduct that resulted in him being placed in the most restrictive and isolated level of death row. (2) The defense claimed that it intended to explain this misconduct with testimony from a psychiatrist (Peccora), who treated appellant on death row "on well over 100 occasions" from "late 1997 or early 1998" until "early 2001." It appears that Peccora would have testified that the conditions on death row caused appellant to suffer psychological deterioration and to misbehave. The State claimed, and the trial court agreed, that the defense could not present Peccora's testimony without first having appellant examined by a state psychiatric expert pursuant to this Court's decision in Lagrone v. State. (3) Appellant would not submit to a Lagrone examination, and Peccora's testimony was not presented.

We understand appellant to have three basic, separate complaints on appeal regarding Lagrone. First, appellant should not have been required to submit to a Lagrone examination. Second, if appellant was required to submit to a Lagrone examination, this examination should have been limited to rebuttal of Peccora's testimony on appellant's mental decline. And, third, if appellant was required to submit to a Lagrone examination, the State should have been precluded from using any evidence derived from this examination on the future-dangerousness special issue. We find appellant's actual claims at trial to have been less clear.

Points of error one through three and five relate to the trial court conditioning the admissibility of Peccora's testimony on appellant submitting to a Lagrone examination. Specifically, appellant claims that the trial court constitutionally erred by not guaranteeing that any evidence the State obtained during this Lagrone examination would be limited to rebutting Peccora's testimony concerning appellant's mental decline on death row and by further failing to guarantee such evidence not be used by the State on the future-dangerousness special issue. In point of error one, appellant claims that this led the trial court "to incorrectly bar [Peccora's] expert testimony and deny the defendant's motion to dismiss the death penalty proceedings" before the punishment hearing began. In point of error two, appellant claims that this also "unconstitutionally permit[ted] the State to introduce evidence [at the punishment hearing] of misconduct by the defendant while on death row." In point of error three, appellant claims that this constitutional error also "effectively" prevented him from presenting constitutionally relevant mitigating evidence (in the form of Peccora's testimony concerning appellant's mental decline on death row) at the punishment hearing. (4) And, in point of error five, appellant claims that the trial court should have granted him a new trial based on these claims.

The record reflects that the Lagrone issue first arose rather late in the proceedings during a November 5, 2004, hearing on a written motion that appellant had filed on October 21, 2004, in the middle of individual voir dire. (5) The second part of that motion requested a ruling from the trial court that the State was constitutionally prohibited from seeking another death sentence and "therefore that [appellant] be sentenced to life imprisonment." The third part of the motion alternatively requested an in limine ruling from the trial court "to exclude all evidence of [appellant's death-row misconduct] subsequent to his first trial in July 1996." (6)

Appellant claimed at the November 5, 2004, hearing on this motion that the State should not be permitted to seek another death sentence or, alternatively, not be permitted to use any evidence of appellant's death-row misconduct after his 1996 trial because of the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial. See Footnote 1. (7) Appellant evidently claimed that he would not have misbehaved on death row but for this "misconduct" by the State. To support these claims, appellant stated that he intended to introduce Peccora's testimony at the hearing to show appellant's mental decline on death row since his 1996 trial. (8)

[THE DEFENSE]: Sure. And the first part of the motion won't be the focus today. We're looking just, really, at the second part and the third part.


And regarding those parts, there are just two factual issues that we need to put evidence on.


The first factual issue is whether [appellant] has suffered a decline in his cognitive abilities and emotional stability as a result of his isolation on death row; and the second issue is whether [appellant] would have committed aggressive acts while incarcerated were it not for the isolation on death row.


[THE COURT]: Gotcha.


[THE DEFENSE]: Now, in legal terms, the way this fits in is, the State should not be able to enjoy the fruits of [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] that it committed eight and one-half years ago.


And if the Court finds that [appellant] has suffered a decline in his cognitive abilities and emotional stability-and, your Honor, it doesn't require a finding on our part that he is psychotic, we're not arguing he's not competent to stand trial; we're only arguing a significant decline in cognitive ability and emotional stability.


If that's the case, our argument is he may no longer be tried. The State committed [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] by putting him on death row, they caused him to be diminished as a result of many years in isolation there, and they can't enjoy the fruits of that at the new sentencing proceeding today.


And, in fact, he can't even be evaluated fairly as a future danger because he's not just the same person today, and the statute requires an evaluation of future dangerousness as of the time of trial.


Second, on the issue of whether [appellant] would have committed aggressive acts while incarcerated if not for the isolation that he was subjected to, the question is whether the State can present evidence of his misconduct on death row on the issue of future dangerousness.


And our position is that the State committed the primary illegality here [with the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial].


If the State can show by a preponderance of the evidence that the defendant's misconduct on death row would have occurred anyway, then we have nothing to complain about.


If you think of this in terms of an illegal search and seizure, and the fruits of an illegal search and seizure, clearly the illegality occurred. That means that the State can certainly try to overcome that illegality; show that, for instance, the evidence would have been obtained anyway; but they have the burden of showing that this misconduct would have occurred in any case.


We maintain that it's very clear from the testimony we'll present that the misconduct occurred precisely because of the isolation on death row that the State illegally placed him in.


The State claimed that appellant should not be permitted to present Peccora's testimony without the State having an opportunity to have appellant examined by a state psychiatric expert, and the trial court agreed.

[THE COURT]: Let me get something up front here.


I have had a chance to read, during some of that testimony, that Lagrone case, and I believe the State has a right to have [appellant] examined if the State's-if the defense is going to offer the evidence along the lines set out in [Peccora's] affidavit, which I've now reread.


The defense would not agree to a Lagrone examination "for the purposes of this pretrial motion" because of the risk that appellant's "examination to a psychiatrist of the State could actually be used against him at trial."

[DEFENSE LAWYER #1]: Well, let me-let me make this even more clear.


The reason that we're putting that into evidence at this point is, we are not going to allow [appellant] to be looked at by a psychiatrist.


[THE COURT]: I gotcha.


[DEFENSE LAWYER #1]: He'll invoke his Fifth Amendment right.


[DEFENSE LAWYER #2]: Your Honor, may I add?


I'd like to point out that we're being placed in a situation risking that [appellant's] testimony-[appellant's] examination to a psychiatrist of the State could actually be used against him at trial. Faced with that possibility, we can't have the-our client examined for the purposes of this pretrial motion. It's just a risk that we can't run.

The record, therefore, reflects that appellant took the position at this November 5, 2004, hearing that any evidence obtained by the State during a Lagrone examination might be used by the State on any issue at the punishment hearing (including future dangerousness). At this point, appellant had not alerted the trial court to any claim that the trial court should guarantee that a Lagrone examination be limited to rebutting any testimony by Peccora on appellant's mental decline and not to prove future dangerousness.

On Friday, November 12, 2004, the State rested its punishment hearing case-in-chief during which the State had presented evidence of appellant's death-row misconduct. On Monday morning, November 15, 2004, appellant filed another written motion requesting that the trial court reconsider its earlier ruling on the Lagrone issue. (9) In this November 15, 2004, motion, appellant offered for the first time to submit to a Lagrone examination. Appellant also specifically alerted the trial court for the first time to the claim that this Lagrone examination should be limited to rebutting any testimony by Peccora on appellant's mental decline.

This motion also requested that a hearing be scheduled five days later on November 20, 2004, because that was "the only possible date for [Peccora's] voluntary attendance." This motion further "encourage[d] the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing." This motion finally asserted that appellant was "willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might better be described as a motion for reconsideration of the sentence."

Appellant's November 15, 2004, motion contained no claim that the trial court's earlier ruling on the Lagrone issue was effectively preventing appellant from presenting constitutionally relevant mitigating evidence to the jury in the form of Peccora's testimony concerning appellant's mental decline. And, appellant made no claim that he wanted to present Peccora's testimony to the jury at the punishment hearing. In relevant part, appellant's November 15, 2004, written motion stated:

Defendant continues to insist that the Court ruled incorrectly in barring [Peccora] from testifying at the hearing of November 5, 2004 without a prior examination of [appellant] by the State's expert, but more seriously, as the Court recognized at the hearing, its decision created a risk for the Defendant-that the State would use its own examination of the Defendant not only on the pre-trial motion of Defendant's impairment, but to prove future dangerousness before the jury. The Defendant returns to the Court in this motion to request that the Court develop some device to permit it to overcome its dilemma.

* * *

Defendant has two proposals for the Court to overcome the problem it faces in needing to consent to an examination of [appellant] prior to any testimony by [Peccora]. First, Defendant asks the Court to order that the prosecution be permitted to examine [appellant], but on condition that the examination not be used for any purpose other than the question of his decline in cognitive ability and emotional stability on Death Row. Because [Peccora] will need to travel to McKinney from Houston, and because [Peccora's] mother is receiving chemotherapy this week and his patient schedule is therefore especially tight, the Defendant also requests that the hearing be scheduled for Saturday, November 20, since that is the only possible date for [Peccora's] voluntary attendance. The Defendant appreciates the difficulties that this causes the Court, but is unable to demand more of [Peccora] at a very trying time for him. Defendant would encourage the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing.


Second, the Defendant is willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might be better described as a motion for reconsideration of the sentence. . . . Defendant would have preferred to have any competency-type issue resolved pre-trial, but in the context of the difficulty that [Peccora] will have attending a hearing, it is willing to accept this alternative, of the Court ruling against the Defendant for the purpose of the trial, but reconsidering the issue with an evidentiary hearing post-trial.


The trial court held a hearing on appellant's November 15, 2004, motion on the morning that it was filed. At this hearing, the defense agreed with the trial court that it was requesting the trial court to reconsider its earlier ruling on the Lagrone issue.

[THE COURT]: This is-it's titled basically the same way. They-the defense wants me to reverse my ruling barring [Peccora] from testifying about [appellant's] deterioration, is the best word I can recall-call it, because of his confinement death row for the last several years.


I had earlier ruled that I would not let-the issue arose that, if the I had allowed [Peccora] to testify, that the State was going to insist on having [appellant] examined by their expert, which I tended to agree they could do because of the case law as I read it. At that point, as I recall, the defense decided that it would not-they did not want to insist on [Peccora] testifying; but, instead, offered his affidavit which he had attached to the original motion instead, which I, of course, considered, and did consider.


And at that point that pretty much any of the-now, the State has filed a controverting affidavit; I believe I saw that one day last week.


And that was by [Price]? Is that your doctor?


[STATE]: Yes, your Honor.


[THE COURT]: Which I also-but I had earlier, before I'd actually seen [Price's] affidavit, I had denied the defense motion, and let it go at that. I have not done more on it.


And then Price's motion was filed, and now the defense has filed a motion-I think it's asking to reconsider, [defense lawyers]? Is that a fair statement?


[DEFENSE LAWYER]: Yes.

The State claimed at this hearing that the defense was "only stalling and asking for a delay in tactics." The State also stated that it wanted to make it "crystal clear" that it had never requested the trial court to bar Peccora's testimony, and that, in the pretrial context in which Peccora's testimony was initially offered at the November 5, 2004, hearing, the State had requested a Lagrone examination "to present controverting evidence if the defense presented that evidence." The State also requested the trial court to deny appellant's motion because it was, among other things, "untimely."

The trial court expressed the view that a Lagrone examination "would probably open everything up" about "anything relevant to [appellant's] mental state, including future dangerousness, which is the defense concern."

[THE COURT]: I did not have a chance to fully brief the-how far, if I could-if I could even restrict your expert if he didn't-assuming [Peccora] was allowed to testify, and then, consistent with my earlier ruling, then he would be entitled-the State would be entitled then to have their expert examine [appellant], and what that would open up.


And my belief is that it would probably open everything up. And if your witness testifies and-examines [appellant] and testified to whatever it is in response to Mr.-[Peccora's] testimony going to be, which, generally, is going to be that [appellant] deteriorated, degradated-degraded, I should say-on death row, I would suspect your witness would be entitled to testify about anything relevant to his mental state, including future dangerousness, which is the defense concern.


So I don't know how I can-Mr. Franklin, I don't know how I can limit, under the case law, their expert. I mean, I guess I could order it, but I'm not going to disregard the law.


So I don't know-I don't have-and the other option he suggests is to wait and have a hearing after the verdict. I-


The trial court ultimately denied appellant's request to limit a Lagrone examination to rebutting Peccora's testimony on appellant's mental decline. Appellant made no claim that this effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony. Appellant again would not submit to a Lagrone examination, and he did not offer Peccora's testimony at the punishment hearing or any other hearing.

The record fairly reflects that it was not until after the State had rested its case-in-chief at the punishment hearing, during which it had presented evidence of appellant's death-row misconduct, that appellant for the first time alerted the trial court to the claim that it should guarantee that a Lagrone examination be limited to rebutting Peccora's testimony on appellant's mental decline. This was too late for appellant to have preserved for appeal the claims presented in points of error one and two. See Tex. R. App. Proc. 33.1(a)(1)(A) (to preserve error for appeal, complaining party must timely present claim to trial court with sufficient specificity to make trial court aware of complaint); Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992) ("all a party has to do to [preserve error] is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it").

In addition, appellant made no claim, in either his November 15, 2004, written motion or at the hearing on this written motion, that the trial court's ruling on the Lagrone issue effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony on appellant's mental decline. See id. Appellant, therefore, failed to preserve for appeal the claim presented in point of error three.

Even if appellant had timely presented a claim to the trial court that its ruling on the Lagrone issue prevented appellant from presenting constitutionally relevant mitigating evidence, appellant still would not be entitled to appellate review of that claim under the principles discussed in Luce v. United States, 469 U.S. 38 (1984). In Luce, the Supreme Court held that a trial court's in limine ruling, (10) permitting a defendant's impeachment with a prior conviction, is not reviewable unless the defendant testifies, because appellate review of these in limine rulings is difficult "outside a factual context" also rendering any attempt to apply a harm analysis "wholly speculative." See Luce, 469 U.S. 41-43. (11) The considerations discussed in Luce apply with equal force here:

Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.


When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible conviction.


Luce, 469 U.S. at 41-42.


In a dissenting opinion in another case decided about sixteen years after Luce, Justice Souter approvingly described the decision in Luce:

We held [in Luce] that a criminal defendant who remained off the stand could not appeal an in limine ruling to admit prior convictions as impeachment evidence under Federal Rule of Evidence 609(a). Since the defendant had not testified, he had never suffered the impeachment, and the question was whether he should be allowed to appeal the in limine ruling anyway, on the rationale that the threatened impeachment had discouraged the exercise of his right to defend by his own testimony. The answer turned on the practical realities of appellate review.


An appellate court can neither determine why a defendant refused to testify, nor compare the actual trial with the one that would have occurred if the accused had taken the stand. With unavoidable uncertainty about whether and how much the in limine ruling harmed the defendant, and whether it affected the trial at all, a rule allowing a silent defendant to appeal would require courts either to attempt wholly speculative harmless-error analysis, or to grant new trials to some defendants who were not harmed by the ruling, and to some who never even intended to testify.[ (12)] In requiring testimony and actual impeachment before a defendant could appeal an in limine ruling to admit prior convictions, therefore, Luce did not derive a waiver rule from some general notion of fairness; it merely acknowledged the incapacity of an appellate court to assess the significance of the ruling for a defendant who remains silent.


Ohler v. United States, 529 U.S. 753, 760-61 (2000) (Souter, J., dissenting).


Appellate review of the trial court's ruling not limiting a Lagrone examination to rebutting any testimony that Peccora might have provided at the punishment hearing on appellant's mental decline is difficult "outside a factual context" and renders any attempt to apply a harm analysis "wholly speculative." See Luce, 469 U.S. at 41-43. In Luce, appellate review of the trial court's in limine ruling, permitting the eventually nontestifying defendant's impeachment with a prior conviction, was practically impossible without a record showing actual testimony by the defendant and actual impeachment of the defendant by the State with the prior conviction. See id. Similarly, appellate review of the trial court's ruling in this case is practically impossible without a record showing Peccora's actual testimony before the jury and the State's actual use before the jury of the results of a Lagrone examination. It is practically impossible to "compare the actual trial with the one that would have occurred" had Peccora testified and appellant submitted to a Lagrone examination. See Ohler, 529 U.S. at 760-61 (Souter, J., dissenting). (13)

In order to be entitled to appellate review of the trial court's ruling not limiting a Lagrone examination to rebutting any testimony that Peccora might have provided on appellant's mental decline, we decide that appellant was required to submit to the Lagrone examination and suffer any actual use by the State of the results of this examination. See Luce, 469 U.S. at 41-43; Ohler, 529 U.S. at 760 (Souter, J., dissenting). It is noteworthy that this is the procedure the defendant in Bradford followed before complaining on appeal that he was required to submit to an examination by a state psychiatrist on the future-dangerousness special issue as a condition for the admission of the defendant's psychiatric evidence on the same issue. See Bradford, 873 S.W.2d at 24-26 (Campbell, J., dissenting). (14) Points of error one through three and five are overruled.

In point of error four, appellant asserts that the future-dangerousness special issue is unconstitutionally vague. This special issue requires the jury to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." See Article 37.071, Section 2(b)(1), Tex. Code Crim. Proc. We have previously held that this special issue is not unconstitutionally vague. See Jurek v. Texas, 428 U.S. 262, 274-76 (1976); Sells v. State, 121 S.W.3d 748, 767-68 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability"); Murphy v. State, 112 S.W.3d 592, 606 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability," "criminal acts of violence," and "continuing threat to society"). Point of error four is overruled.

In points of error six through sixteen, appellant claims that the trial court erroneously denied his challenges for cause to eleven veniremembers: Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), Gaus (point thirteen), Farris (point fourteen), Baird (point fifteen), and Garfield (point sixteen). As a result of the trial court's denial of these defense challenges for cause to these eleven veniremembers, appellant claims that he "suffered a detriment from the loss of [an] additional peremptory strike" and that "objectionable and biased jurors to the defense were seated on the Jury."

We review a trial court's ruling on a challenge for cause with "considerable deference" because the trial court is in the best position to evaluate the veniremember's demeanor and responses. See Colburn v. State, 966 S.W.2d 511, 517 (Tex.Cr.App. 1998). We will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." See id.

Harm from the erroneous denial of a defense challenge for cause occurs: (1) when a defendant uses a peremptory challenge to remove a veniremember whom the trial court should have excused for cause at the defendant's request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use to remove another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. See Newbury v. State, 135 S.W.3d 22, 30-31 (Tex.Cr.App. 2004); Wolfe v. State, 178 S.W.2d 274, 281 (Tex.Cr.App. 1944) (op. on reh'g). When these conditions are met, this Court has stated that the trial court's erroneous denial of a defense challenge for cause harms the defendant by wrongfully depriving him of at least one of his statutory peremptory challenges that he could have used to remove the juror whom the defendant identifies as "objectionable." See Newbury, 135 S.W.3d at 31; Wolfe, 178 S.W.2d at 280.

The record reflects that appellant used a peremptory challenge to remove each veniremember identified in points six through fifteen after the trial court denied appellant's challenges for cause to them. (15) The record also reflects that appellant received two extra peremptory challenges from the trial court. Appellant, however, had no peremptory challenges left when he challenged Garfield for cause (point sixteen). Garfield was seated as the twelfth juror after the trial court denied appellant's challenge for cause to Garfield and appellant's request for additional peremptory challenges and after appellant informed the trial court that the defense was "forced to accept" Garfield even though Garfield was a juror whom the defense "would not want on the panel."

[DEFENSE]: Your Honor, based on the Court's decision to deny the challenge [to Garfield], we would request additional preparatory [sic] strikes at this time.


Would, for the record, point out that, in addition to this juror that we would not want on the panel, the challenges for cause that also having been made and used on the other jurors-specifically Juror Number 189, Kleber-the challenges for cause that were denied by the Court, 189, Dennis Kleber; 175, Joyce Powers; 127, Marie Kunesh; 101, Don Wilson; 28, Patti Gilbert-especially Patti Gilbert-Juror-I'm sorry; Juror 6, Bruce Van Lokeren.


For those reasons, we request an additional peremptory at this time.


[THE COURT]: Mr. Harrison I'm going to decline to do that. I'm conscious of your position.


I feel like the Court's been very careful in considering your challenges, and somebody else may think otherwise; but I'll decline to give you additional challenges at this time.


So what says you all about the Juror Garfield?


[DEFENSE]: Well, based on the decision, we are forced to accept.


It is necessary to first address point of error sixteen (denial of defense challenge for cause to Garfield). Appellant arguably identified Garfield as the "objectionable juror" (16) for purposes of attempting to show that the trial court's rulings on his challenges for cause to the other veniremembers identified in points six through fifteen harmed him by wrongfully depriving him of at least one of his statutory peremptory challenges that he could have used to remove Garfield.

Though it is not clear from his brief, appellant also appears to argue that the inclusion of Garfield on his jury deprived him of a fair punishment hearing. (17) The record reflects that appellant challenged Garfield for cause on the basis that Garfield "would require the defense to have the burden to show mitigating circumstances." We have held that a veniremember is not challengeable for cause "simply because he would place the burden of proof on mitigation on the defense." See Ladd v. State, 3 S.W.3d 547, 559 (Tex.Cr.App. 1999).

In addition, the portion of the record of Garfield's voir dire set out in appellant's brief does not support the assertion that Garfield stated that he would require the defense to show mitigating circumstances.

Q. [DEFENSE]: Now, along with the [mitigation special issue] kind of comes into play the Fifth Amendment.


The Fifth Amendment, the defendant's right not to incriminate himself, applies to the punishment phase just like it does the guilt-innocence phase.


If a defendant does not testify in the punishment phase, the Judge will instruct you to not consider that for any purpose. It's a nonfactor. Look at all the other evidence that you have, make a decision based on all the other evidence, but don't consider that.


Do you have a problem following that law.


A. [GARFIELD]: Um, I understand the law. I understand the Constitution. But I have to say, in my own mind, a complete lack of defense-okay; in other words, rebuttal to any of the claim-would psychologically be a factor for me.[ (18)]


Garfield also stated that he could "keep an open mind and consider everything for mitigation on the [mitigation special issue]."

Q. [DEFENSE]: The law requires that you've still got to keep an open mind and consider everything for mitigation on [the mitigation special issue].


Can you promise me you can do that?


A. [GARFIELD]: I can promise you that.

* * *

Q. Okay. And the reason I ask, especially on [the mitigation special issue], we have some jurors tell us that, you know, if I'm going to make a determination if there's mitigating circumstances, I kind of need to hear from the defendant; that's the only way I can make that decision.


Other jurors say, that's not a problem for me; I can follow the law and base it on the testimony and the evidence I hear.

Can you do that?


A. I can.


On this record, no "clear abuse of discretion is evident" in the trial court's denial of appellant's challenge for cause to Garfield. See Colburn, 966 S.W.2d at 517. Point of error sixteen is overruled.

Since appellant received two extra peremptory challenges, appellant must show that the trial court erroneously denied at least three of his challenges for cause to the other veniremembers identified in points six through fifteen. See Newbury, 135 S.W.3d at 31; Chambers v. State, 866 S.W.2d 9, 23 (Tex.Cr.App. 1993). This would satisfy the required showing for harm by demonstrating that appellant was wrongfully deprived of at least one of his statutory peremptory challenges. See Newbury, 135 S.W.3d at 31.

In point of error six, appellant claims that veniremember Vanlokeren was challengeable for cause because "he had a strong bias in favor of law enforcement and would want the defendant to testify." The record reflects that appellant did not challenge Vanlokeren on the latter basis of wanting appellant to testify, so we do not consider this claim. The record further reflects that Vanlokeren, whose father was a police officer, stated on voir dire that this would not prevent him from being able to "follow the law" as it had been explained during voir dire or prevent him "from looking at things objectively." Appellant even stated in making his challenge for cause that Vanlokeren "vacillated back and forth."

[DEFENSE]: Yeah. You said challenge.


Judge, I would challenge [Vanlokeren] based on the bias he's expressed and the-the way he's kind of vacillated back and forth with that as to-as to being able to hold the State to its burden [on the future-dangerousness special issue], proving beyond a reasonable doubt in the punishment phase.


[THE COURT]: Briefly, Ms. Scanlon, do you want to respond to that?


[STATE]: Your Honor, I believe that [Vanlokeren] was unequivocal in saying that he could follow the law as given. After multiple times of being asked by Mr. Harrison, he still stated that he would follow the law; he would put those biases aside and decide the facts of the case based on the evidence presented.


[THE COURT]: All right.


Mr. Harrison, I'm going to deny your challenge. I watched the juror and heard his answers, of course. He's a very thoughtful person. And the record won't necessarily reflect; he paused before he answered-well, the record may reflect since I've said it now-before he responded to some of your questions.


And I conclude on totality of his answers that he would be able to follow this law and discharge his oath as a juror, so I'll deny your challenge.

The trial court was in the best position to determine whether Vanlokeren was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error seven, appellant claims that veniremember Janszen was challengeable for cause because she was "predisposed to automatically answering 'yes' to [the future-dangerousness special issue] if someone was convicted of murder" and because she "wanted to hear from the defense why the defendant should not get the death penalty." The record reflects that appellant did not challenge Janszen on the latter basis of wanting to hear from the defense on why appellant should not get the death penalty, so we do not consider this claim.

The record reflects that Janszen initially stated to the defense that she would answer "yes" to the future-dangerousness issue if the only evidence presented was an intentional killing during a robbery. She later stated that there "would be some cases of capital murder where [she] would say yes to the [future-dangerousness special issue], and there would be some that [she] would say no." She later stated that she thought that she could keep an open mind and require the State to prove the future-dangerousness special issue.

Appellant challenged Janszen for cause on the basis that she was "predisposed" to answering the future-dangerousness issue "yes" after convicting someone of capital murder. The trial court denied the challenge.

[DEFENSE]: Your Honor, the defense would challenge [Janszen] based on the answer she gave to [the future-dangerousness special issue].


I think she gave some honest answers and feeling that she was predisposed to find somebody a continuing threat if they were guilty of capital murder.


The law was explained to her a number of times. The first item of couples [sic] of times she stuck with her answer, and I feel like that that's her honest feeling; that if somebody had been found guilty of capital murder, that she was predisposed to answer that yes and not require the State to meet the burden of proof on that issue.


So we challenge her-challenge [Janszen] on that.


[THE COURT]: Ms. Leyko, do you just want to respond-I don't want to bring her back in to do it, but-


[STATE]: Your Honor, no. I believe she said she could be fair. The only time she said she would answer [the future-dangerousness special issue] yes is when she thought she had a specific set of facts. And that was actually pinning her, and probably in violation of Standefer.


But when given a different scenario, she said no. And when asked specifically, are you predisposed, she said she could be fair. She'd make us prove the case-prove that question to her beyond a reasonable doubt.


And when Mr. Harrison would back off the specific fact scenario and just say, are there some capital murders that would be yes and some no, she said yeah. I mean, to her it depends on the facts, and she understands it's our burden, and she said she could follow the law.


[THE COURT]: Mr. Harrison, I'll deny your challenge. I think she's qualified.


The trial court was in the best position to determine whether Janszen was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error eight, appellant claims that veniremember Gilbert was challengeable for cause because she, too, "had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue]." The record, however, reflects that Gilbert vacillated. For example, during questioning by the defense, she stated that she'd be "leaning toward finding them dangerous" after a conviction for capital murder.

Q. [DEFENSE]: Honestly, you told me that, honestly, you felt like you'd be leaning toward somebody being found dangerous once they'd been convicted of capital murder.


A. [GILBERT]: Yes, I do.


Q. And you indicated-the law says you can't do that, but you're telling me that, even though you know you're supposed to start it out as no, and make the State prove, yes, they are a continuing threat, being honest with me and being true to your oath, you'd already be leaning toward finding the person dangerous. And you wouldn't start it out as a no.


A. This is all so new to me.


Q. Oh, sure.


A. And I know I probably have contradicted myself a thousand times already, but, um-


Q. Well, but it's like you said. I need your honest answer. I mean, if you honestly feel that way, and that's how you feel, that's fine. We have plenty of people feel that way, too. They say, hey, look, Rick, if somebody's already been found guilty of capital murder, and there's no excuse given, and they specifically intended to kill somebody, you know, being honest with you, I know the law says I'm supposed to start that question out no and make the State prove it to me beyond a reasonable doubt; but being honest with you, and the way I honestly feel, I wouldn't be able to start it out as no; I'd be leaning toward finding them dangerous; and you know, you almost have to prove to me that they weren't.


A. Right. I agree that way.


Q. Is that how you honestly feel?


A. Yes.


When subsequently questioned by the State, Gilbert stated, however, that she could "set [her] biases aside, follow the law, and presume [the future-dangerousness special issue] no until [the State] prove[d] it to [her] beyond a reasonable doubt."

Q. [STATE]: Ms. Gilbert, not to continue to harp on this same issue; I just want to kind of clarify and make sure we understand you completely.


You indicated that you had a predisposition or a leaning toward-on [the future-dangerousness special issue], a leaning toward, yes, you'd find him to be a future danger.


We all have predispositions; we all have beliefs; we all-as much as we like to think we're unbiased and neutral, we all have our leanings. We're just designed that way.


We don't like murderers; we don't like child molesters. We're built that way.


To be fair, and to be qualified to be on a jury, what you have to be able to do is set those leanings, those biases, aside and follow the law.


A. [GILBERT]: Exactly.


Q. With regard to [the future-dangerousness special issue], though you have a leaning toward, yeah, I would find him to be a future danger, understanding we have the burden on that question-and what that means is, that question is presumed to be no.-can you set your biases aside, follow the law, and presume that question no until we prove it to you beyond a reasonable doubt?


A. Yes. I could do that.


Q. And so even though they've asked you your leaning, your predisposition, and knowing that's your true feeling, you could wipe that, start out with a clean slate, you're presuming this question no, until we've proven it to you beyond a reasonable doubt.


A. Yes. I could do that.


The trial court did not abuse its discretion to deny appellant's challenge for cause to Gilbert based on her conflicting answers. See Colburn, 966 S.W.2d at 517. On this record, no "clear abuse of discretion is evident." See id.

In point of error nine, appellant claims that veniremember Wilson was challengeable for cause because he, too, was "predetermined that if a person was convicted of capital murder, he would automatically answer 'yes' to [the future-dangerousness special issue]" and because he would require the defense "to prove the issue of mitigation." The record reflects that appellant did not challenge Wilson on the former basis that he would automatically answer "yes" to the future-dangerousness special issue when a defendant has been convicted of capital murder, so we do not consider this claim. And, Wilson was not challengeable for cause "simply because he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Wilson also testified that, if the evidence from whatever source showed mitigation, he would consider it in answering the mitigation special issue.

Q. [DEFENSE]: Well, I understand that. But in-and sometimes that's what happens. Sometimes-like Ms. Scanlon says, all the defense-all the defendant has to do is show up, and we show up with him. And a lot of times in a case the defense doesn't do anything but show up.


And in-in a situation like this, in answer to [the mitigation special issue], I take it that you would really want the defense to do something in order for you to answer-


A. [WILSON]: I would want evidence, you know.


Q. From the defense.


A. From everybody. Yes. I'd want to be able to understand what the whole situation was.


I mean, if you don't present a defense, it's hard to agree one way or the other.


Q. If the defense did not present any evidence to you, any evidence to you, would you just close off any deliberation on mitigation altogether and not look for it anywhere else that it may come up?


Because it can be anywhere.


A. It can be anywhere. I would look for whatever the possibilities are.


I would prefer it came from the defense; that would be my preference. But I have to look at the evidence, and, if the evidence showed something along that nature, then I would have to look at that and examine it and proceed on it accordingly.


The trial court was in the best position to determine whether Wilson was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error ten, appellant claims that veniremember Kunesh was challengeable for cause because "she could not consider a number of mitigating circumstances." Kunesh stated that what she defined "as mitigating or extenuating has to meet an extraordinarily high bar before we say that it indeed is what we're going to use as a safety net to back off on the death penalty." There "is no per se evidence that must be viewed by a juror as having definitive mitigating effect." See McFarland v. State, 928 S.W.2d 482, 497-98 (Tex.Cr.App. 1996). The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kunesh.

In point of error eleven, appellant claims that veniremember Powers was challengeable for cause because "she had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue], she could not consider alcohol or drug use as mitigating circumstances and she would place a burden on the defense to prove mitigation." The record reflects that Powers vacillated on whether she would automatically answer "yes" to the future-dangerousness special issue after a capital murder conviction. She ultimately stated that she could presume a "no" answer and wait for the State to prove it.

Q. [DEFENSE]: Okay. So let's try it one more time.


The law says you've got to presume [the future-dangerousness special issue] to be, no, he's not a continuing threat, and the State has to prove it to you.


Now, I asked you, and you and some other jurors feel like sometimes that, even though that's what the law is, I'd have a problem presuming that to be no, and I would presume that to be yes. That's the way I'm-even though the law says I'm supposed to presume it no, being honest with you, if he's already been convicted of capital murder, I'm going to probably be presuming that to be yes.


And, I'm asking you, do you have that same problem, or not?


A. [POWERS]: My-my first thought would be yes.


Q. Right.


A. Now, I have to wait for the State to give me the evidence to prove to me that they are a future danger to society.


Q. Right. So the question becomes-


A. I will look at the evidence before I make a final decision.


Q. Okay. And that's great. But the question still that we need to know is, can you presume [the future-dangerousness special issue] to be no, even though somebody's been convicted of capital murder?


A. Yes.


Q. Okay. So everything you said earlier, were you just confused with what I was saying?


A. Yes.

And, there is no per se evidence that Powers was required to view as having definitive mitigating effect. See McFarland, 928 S.W.2d at 497-98. Powers also was not challengeable "simply because [s]he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Powers also ultimately stated that she could consider a life sentence even if the defense did not present "anything" to her.

Q. [DEFENSE]: Okay. So you would feel the defense would have to bring you something-


A. [POWERS]: Yeah.


Q. -to warrant a life sentence versus a death sentence with a [sic] mitigating circumstances.


A. Yes.


Q. Okay. And if the defense didn't bring that to you, or that wasn't brought, that might be a problem for you in considering a life sentence.


A. No. It wouldn't be a problem if it-if you're not presenting anything to me-


Q. Right.


A. -it's not going to be a problem.

The trial court was in the best position to determine whether Powers' was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error twelve, appellant claims that veniremember Kleber was challengeable for cause apparently because he would not consider as mitigating "drug use, alcohol use, some of those things; anything that you do on your own that you've made a decision on your own to use." Kleber was not required to consider these things to be mitigating. See McFarland, 928 S.W.2d at 497-98. The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kleber.

In point of error thirteen, appellant claims that veniremember Gaus was challengeable for cause because "he would give the death penalty to someone who was convicted of capital murder and had found [the future-dangerousness special issue] to be yes." Appellant challenged Gaus for cause on the basis that he "would not be really interested in moving on down to [the mitigation special issue] and considering mitigation" after answering "yes" to the future-dangerousness special issue.

Gaus stated, during questioning by the State, that he thought the mitigation special issue was necessary and that he would be "able to listen to all the evidence and weigh it accordingly."

Q. [STATE]: -what was your impression, or what do you think of this [mitigation special issue]? What do you take it to be?


A. [GAUS]: (No audible response)


Q. Nothing.


A. (No audible response)


Q. Nothing?


A. It's just-it-the way I understand it, and my take on it, would be that there's something-evidence or special circumstances involved here whereas the murder would not-or the death sentence would not be justified.


Q. And that's exactly-that's exactly it. The legislature created this vehicle or this question as a vehicle, as a chance, if you will, to take a step back; that a defendant has been found guilty beyond a reasonable doubt of capital murder, has been proven to you beyond a reasonable doubt to be a probable continuing threat to society; regardless of those two factors, is there anything that you've heard, any evidence, that is sufficiently mitigating to warrant life rather than death.


A. Mm-hmm.


Q. What do you think about that? Do you think that's a good thing? Bad thing?


A. I think it's necessary.


Q. Okay. Since we're dealing with someone's life?


A. Sure.


Q. Okay.


Mitigating evidence is not going to be defined for you. It's going to be whatever you think it is.


To be qualified as a juror, we just need you to have an open mind and not automatically exclude a piece of evidence just because of the nature of the evidence. For instance, saying, I won't consider someone's background, because I know people that came from a poor or abusive background, and they don't kill people.


Do you think you'd be qualified as a juror; able to listen to all the evidence and weigh it accordingly?


A. Yes.


Gaus later stated, during questioning by the defense, that "[t]here's a very good chance he'd go with the death penalty" after a "yes" answer to the future-dangerousness special issue and that there were "probably very few things" that he would consider "as mitigating factors." On this record, the trial court would not have abused its discretion to find that Gaus never expressed a categorical refusal to consider the mitigation special issue after a "yes" answer to the future-dangerousness special issue. See Colburn, 966 S.W.2d at 517.

Based on the foregoing, we conclude that the trial court did not erroneously deny appellant's challenges for cause to Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), and Gaus (point thirteen). Since appellant has to show that the trial court erroneously denied his challenges for cause to at least three of the veniremembers identified in points six through fifteen, it is unnecessary to decide whether the trial court erroneously denied his challenges for cause to Farris (point fourteen) and Baird (point fifteen). See Newbury, 135 S.W.3d at 41. Points of error six through fifteen are overruled.

In point of error eighteen, appellant claims that the evidence is legally insufficient to support the jury's finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. We apply the Jackson v. Virginia standard in determining whether the evidence is sufficient to support this finding. See Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991) (appellate court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that the defendant would probably commit criminal acts of violence that would constitute a continuing threat to society).

The evidence shows that appellant and an accomplice (Chavez) forced the victim into the victim's car in the parking lot of a grocery store. Appellant and Chavez took the victim in his own car to a remote location and parked. Appellant led the victim into some woods while Chavez waited at the car. Appellant shot the victim five times with the last shot to the head at close range to make sure the victim was dead. Appellant was confrontational when the police arrested him about an hour later. That evening, several police officers observed that appellant was unremorseful and that his situation seemed like "a joke to him." One officer told appellant several times that he should take his situation seriously and stop laughing. Appellant was involved in an attempted armed robbery about five days before the victim's murder. Appellant engaged in numerous acts of misconduct while incarcerated on death row. We decide that the evidence is sufficient to support the jury's finding on the future-dangerousness special issue. Point of error eighteen is overruled.

In point of error seventeen, appellant claims that the trial court erred in not allowing him to present, as constitutionally relevant mitigating evidence, evidence that Chavez received a life sentence for his lesser role in the victim's murder. This Court has held that "evidence of a co-defendant's conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present" in part because this evidence does not relate to the defendant's "own circumstances." See Morris v. State, 940 S.W.2d 610, 613-14 (Tex.Cr.App. 1996).

Appellant claims that more recent United States Supreme Court cases such as Tennard v. Dretke, 542 U.S. 274 (2004), have "impliedly overrule[d] any prior rule of Texas evidence that would normally prevent the use of this type of evidence at a punishment hearing because of the special nature of a capital murder death case." We disagree, because, even though cases such as Tennard establish a "low threshold for [constitutional] relevance," these cases still require that the proffered evidence relate to the defendant's "own circumstances." See Tennard, 542 U.S. at 284-85 (placing virtually no limits on evidence that a capital defendant may introduce "concerning his own circumstances"). Point of error seventeen is overruled.

In point of error nineteen, appellant claims that "the trial court erred in not concluding the punishment hearing and imposing a life sentence based on the trial court being made aware of the issues supporting the reversal of the recent death penalty case of Smith v. State, 543 U.S. 37 (2004)." Appellant claims that the statutory mitigation special issue set out in the version of Article 37.071, Tex. Code Crim. Proc., applicable to appellant's case "is nothing more than a nullification issue to [the future dangerousness special issue]."

The Supreme Court's decision in Smith addressed the constitutionality of a non-statutory, "nullification" special issue that effectively instructed the jury to compromise its ethics and disregard its oath and instructions by changing one of its "yes" answers to one of the other statutory special issues to a "no" answer if the jury believed that mitigating circumstances existed warranting a sentence less than death. See Smith, 543 U.S. at 38-39, 45-49. The statutory mitigation special issue submitted in this case is nothing like the "nullification" instruction at issue in Smith. The statutory mitigation special issue in this case provided appellant's jury a vehicle to "fully" consider and give effect to appellant's mitigating evidence without requiring the jury to disregard its oath and instructions by changing its answer to the future-dangerousness special issue. Unlike Smith, the jury in this case could have "fully" considered and given effect to appellant's mitigating evidence by providing a "yes" answer to the mitigation special issue. Point of error nineteen is overruled.

In point of error twenty, appellant claims that the trial court erroneously admitted "numerous autopsy photographs in violation of [Tex. R. Evid. 403], where the prejudicial effect of the evidence far outweighed any probative value." (19) Appellant claimed at trial that the "inflammatory and prejudicial value outweigh[ed] the probative value" of the photographs. (20) The trial court overruled appellant's objection finding "that the probative value of the particular exhibits outweighs the prejudicial value, given the nature of this case and the evidence." The record reflects that the medical examiner used the autopsy photographs to help explain his testimony about the victim's five gunshot wounds. For example,

Q. [STATE]: State's Exhibit No. 57, what is this a photograph of?


A. [MEDICAL EXAMINER]: Well, this is the entry site behind [the victim's] left ear.


Now, this is a photograph that is dirty, or not cleaned up. I haven't shaved away the hair so you can better see the entry, and haven't cleaned up any blood. This is as it is uncleaned.

* * *

Q. Dr. Rohr, looking at State's Exhibit No. 50, what are we looking at here?


A. Well, this is a cleaned-up photograph of the entry site behind the left ear. Here I have the hair shaved away, and I've cleaned away a lot of the blood, and you can easily see the entry wound.


One of the things I'd like to point out is that there's characteristics of a contact wound here, and that there's splitting of the wound here, a long laceration; and if you look a little harder, the edges are serrated, or jagged, right up in here, which is-it's not a smooth round defect like you'd expect in a distant shot. Only a contact wound against a flat bone would create this sort of a situation.


Appellant's claim on appeal boils down to the argument that it was "unfairly prejudicial" for the jury to see the autopsy photographs that helped explain the medical examiner's testimony and that depicted the victim's gun shot wounds inflicted by appellant because this evidence was "meant to appeal to emotion rather than the fact finding process." The case law, however, actually refers to an "undue tendency" to suggest decision on an "improper basis" such as an "emotional one." See Newbury, 135 S.W.3d at 43. The photographs in this case depict what appellant caused and what verbal testimony properly described. (21) See id. Under these circumstances, the trial court would not have abused its discretion to determine that any tendency of the photographs to suggest a decision on an emotional basis was not "undue" or that any "undue tendency" to suggest decision on an emotional basis did not "substantially outweigh" or even "outweigh" the probative value of the photographs. See id.; see also Escamilla v. State, 143 S.W.3d 814, 826 (Tex.Cr.App. 2004), cert. denied, 544 U.S. 950 (2005) (trial court did not abuse its discretion to admit autopsy photographs because they helped explain the medical testimony describing the victim's various injuries caused by the defendant). Point of error twenty is overruled.

In point of error twenty-one, appellant asserts that "the trial court erred in overruling appellant's objection to oral statements made by the defendant while he was in custody." The record reflects that the State intended to elicit testimony from officer Giddings concerning his observations of appellant's demeanor during the booking process after his arrest. (22) Appellant generally objected "to anything [appellant] said while he was in custody." The trial court ruled that Giddings could not offer an opinion of what appellant's "mental processes might have been" but that he could describe for the jury "what he saw [appellant] do, whatever that was; smiling, not smiling, or casual or uncasual, or whatever." We understand appellant to complain on appeal that Giddings also testified before the jury that appellant did not "seem to express any remorse for what he had done."

Q. [STATE]: How would you describe the defendant's demeanor while y'all were doing the book-in process and removing his clothes?


A. [GIDDINGS]: Nice. He was not unhappy. He seemed to be nonchalant about the whole thing.


At times he would laugh; and during-during the book-in process, he-he would laugh and cut up and just seemed like everything was fine.


Q. At the time you were dealing with him, did he seem to express any remorse for what he had done?


A. None whatsoever.

Assuming that this lack of expression of remorse testimony constituted an opinion of what appellant's "mental processes might have been," appellant failed to preserve any error in the admission of this testimony because he did not object to this foreseeable event or move for an instruction to disregard it, if it was not foreseeable. See Young v. State, 137 S.W.3d 65, 69-70 (Tex.Cr.App. 2004) (objection required to preserve error to any foreseeable occurrence, and request for instruction to disregard or motion for mistrial required to preserve error to unforeseeable occurrence). In addition, any error in admitting this lack of expression of remorse evidence was harmless because other evidence of appellant's lack of expression of remorse was admitted without objection from appellant. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Cr.App. 1998). For example, Detective Bennett testified, without objection, that she observed appellant on the night of his arrest "laughing, smirking, smiling," which Detective Bennett interpreted as appellant having "no remorse whatsoever." (23) Point of error twenty-one is overruled.

In point of error twenty-two, appellant again asserts that "the trial court erred in overruling appellant's objection to oral statements made by the defendant while he was in custody." Appellant claims that, "after counsel made an objection to all evidence involving statements by the defendant while in custody," the trial court erroneously permitted officer Pero to testify that appellant never expressed any remorse. Appellant's brief contains no citation to the record where this objection was made. And, the record citation provided in appellant's brief indicates that no such objection was ever made to Pero's testimony. (24)

Q. [STATE]: And were you assigned at some point to watch [appellant] while he was in jail?


A. [PERO]: Yes. In the interview room in the police station.


Q. And what were your duties regarding [appellant] that evening?


A. I was basically stationed outside of the interview room, and-which is off one of the hallways. I was instructed to make sure no person, officer or otherwise, had any conversations in that general vicinity so no one-so [appellant] couldn't hear what we were talking about; and also to watch over him, guard the room; and I also facilitated several of his requests he made to me; things such as a trip to the restroom, water, food. I think he may have requested a blanket, at one point.


Q. And did he ever make those-did he make those requests in English, or in Spanish?


A. In English.


Q. And at the time that he was requesting things from you, what was his demeanor?


A. He was very-the word I use to describe it is very amused with the situation he was in. On several occasions he chuckled or laughed; just-


Q. Did it seem unusual, given his circumstances?


A. Yes. I was surprised by his demeanor.


Q. At any point did he give you a hand gesture that is sometimes determined-deemed to be offensive?


A. On one of the times where I opened the door to the interview room to check on [appellant], he flipped me off and chuckled as I exited.


Q. And was-what events led up to that?


A. Simply that; simply me opening the door to check on him, as I did periodically. There was no words spoken, just the gesture and the chuckle.


Q. And did you respond?


A. I did not.


Q. During the time that you were dealing with [appellant] and interacting with him, did you ever see him express any remorse for the reason he was in there.


A. No.

Appellant did not preserve any error because he failed to properly object to this testimony. Point of error twenty-two is overruled.

In point of error twenty-three, appellant again complains that "the trial court erred in overruling appellant's objection to oral statements made by [appellant] while he was in custody." In point of error twenty-four, appellant complains that "the trial court erred when it permitted the State to present testimony of a confession by [appellant] to prior murders as a prior bad act, since the State failed to name the alleged victim of the crime, or indicate when or where it occurred, and left the defendant with too little time and information to respond."

The record reflects that, as appellant was being transported back to the court house from jail after a lunch break during the punishment hearing, appellant spontaneously told a county detention officer (Poindexter) that he had "killed three people in Oak Cliff." Appellant objected to the admission of this evidence on hearsay grounds. The State responded that it was a "party opponent admission" and not hearsay. The trial court overruled appellant's objection. Poindexter provided the following testimony before the jury.

Q. [STATE]: Now, on your way over back to the courtroom after lunch today, did you have a conversation with [appellant]?


A. [POINDEXTER]: Yes, ma'am.


Q. And what was the nature of that conversation?


A. I was asking him from where about in Argentina he was, as we were walking through the tunnel.


Q. And during the course of this conversation, did the-did [appellant] make any statements that alarmed you?


A. Yes, ma'am. He stated kind of in a-we were talking about Argentina, and then there was a pause, and out of nowhere he just kind of turned and looked at me and said, You know I killed three people in Oak Cliff.


We decide that the trial court did not abuse its discretion to admit this evidence. The trial court would not have abused its discretion to decide that the very fact that appellant would make such a statement (without regard to its truthfulness) in the course of his capital-sentencing proceeding would have some relevance to both special issues. (25) Points of error twenty-three and twenty-four are overruled.

In points of error twenty-five through forty-nine, appellant presents various challenges to the court's jury charge. In point of error twenty-five, appellant claims that "the trial court erred in failing to provide a rational process for the jury to determine life or death." In point of error twenty-six, appellant claims that "the trial court erred in failing to instruct the jury how to rationally resolve the tension between the requirement of an individualized sentencing procedure and the provision of a mechanism to deter others from committing similar crimes." In point of error twenty-seven, appellant claims that "the punishment charge as a whole is legally insufficient." In point of error twenty-eight, appellant claims that the "punishment charge as a whole is legally insufficient because it fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error twenty-nine, appellant claims that "the punishment charge as a whole fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error thirty, appellant claims that "the trial court erred in failing to instruct the jury that they may consider 'non-Penry' mitigating evidence to rebut, and raise a reasonable doubt about, the State's claim of future dangerousness, deliberation and reasonable expectation of death, as well as in consideration of [the mitigation special issue] on mitigating circumstances."

In point of error thirty-one, appellant claims that "the trial court erred in failing to instruct the jury that there is no presumption in favor of death." (Emphasis in original). In point of error thirty-two, appellant claims that "the trial court erred in failing to instruct the jury on the meaning of the phrase 'criminal acts of violence.'" In point of error thirty-three, appellant claims that "the trial court erred in failing to instruct the jury that 'continuing threat to society' does not mean 'any threat of harm or death, no matter how minor or remote." In point of error thirty-four, appellant claims that "the trial court erred in failing to submit a definitional instruction to the jury to define continuing threat to society so as to select only the 'worst of the worst' for the death penalty." In point of error thirty-five, appellant claims that "the punishment charge as a whole is legally insufficient."

In point of error thirty-six, appellant claims that "the trial court erred in failing to limit the jury's consideration of victim impact evidence." In point of error thirty-seven, appellant claims that "the trial court erred in failing to instruct the jury that victim character or impact evidence does not meet or relieve the State of its burden to prove the continuing threat issue beyond a reasonable doubt." In point of error thirty-eight, appellant claims that "the trial court erred in failing to instruct the jury that jurors are not to use the victim evidence to make any comparative worth analysis contrary to the holding in [citation omitted]."

In point of error thirty-nine, appellant claims that "the trial court erred in failing to instruct the jury that it shall answer 'yes' to [the future-dangerousness special issue] if 10 jurors agree that one or more mitigating circumstances exist." (26) In point of error forty, appellant claims that "the trial court erred in failing to instruct the jury that even if they disagree as to which mitigating circumstance or circumstances is or are sufficient, a sentence of life imprisonment rather than death be imposed." In point of error forty-one, appellant claims that "the trial court erred in failing to instruct the jury that it shall answer 'yes' to [the mitigation special issue] even if the jurors disagree as to which mitigating circumstance or circumstances is or are sufficient to warrant that a sentence of life imprisonment rather than death be imposed." (Emphasis in original). In point of error forty-two, appellant claims that "the trial court erred in failing to instruct the jury that it may answer 'yes' to [the mitigation special issue] even if the jurors disagree as to which mitigating circumstance or circumstances is or are sufficient to warrant that a sentence of life imprisonment rather than death be imposed." In point of error forty-three, appellant claims that "the trial court failed to inform the jury of all their options provided by law, which renders the capital sentencing process irrational and unreliable under the Eighth and Fourteenth Amendments."

In point of error forty-four, appellant claims that "the trial court erred in failing to inform the jury that if they do not unanimously agree on special issues one through two, that has the same dignity and respect as a 'yes' or 'no' answer and is the same in legal effect as a 'no' answer." In point of error forty-five, appellant claims that "the trial court erred in failing to inform the jury that a life sentence, not a mistrial, results from a failure to answer the special issues." In point of error forty-six, appellant claims that "the jury instruction which instructs the jury that 10 of them must agree in order to answer [the future-dangerousness special issue] with a 'no' answer which will result in a life sentence is a misrepresentation."

In point of error forty-seven, appellant claims that "the trial court erred in instructing the jury to decide any issue of fact that was not alleged in the indictment returned against the defendant." (27) In point of error forty-eight, appellant claims that "the trial court erred in failing to instruct the jury in [the mitigation special issue] that the State has the burden to prove beyond a reasonable doubt that no circumstances exists that would justify a sentence of life." And, in point of error forty-nine, appellant claims that "the trial court erred in failing to require proof of extraneous offenses and other misconduct beyond a reasonable doubt." (Emphasis in original). (28)

The record reflects that appellant made various objections to the court's charge. These objections seem consistent with the points of error raised on appeal. Appellant argues in his brief:

These [trial] objections were made to either bring about a reality of truth in jury charges, especially in death cases, or to implement recommendations of the American Bar Association's position as published by its Section of Individual Rights and Responsibilities "Death Without Justice: A Guideline for Examining the Administration of the Death Penalty in the United States," published June, 2001 and included in the publication of the State Bar of Texas "Capital Punishment: A Review of Recent Developments and Their Implications," February 8, 2006.


We believe it sufficient to dispose of these points (29) by recognizing that the trial court submitted a charge consistent with applicable state statutes, which have withstood numerous constitutional challenges. These state statutory provisions meet federal constitutional requirements by narrowing the class of "death-eligible defendants" and they arguably provide more than required by the federal constitution by providing a jury a vehicle to "fully" consider mitigating evidence "in every conceivable manner in which the evidence might be relevant." See Cockrell v. State, 933 S.W.2d 73, 92-93 (Tex.Cr.App. 1996). Points of error twenty-five through forty-nine are overruled.

In points of error fifty through sixty-six, appellant raises various constitutional challenges to Texas' death penalty statutes. In point of error fifty, appellant claims that various Texas capital murder statutory provisions were improperly applied to appellant "because the State of Texas has not developed appropriate ways to enforce the constitutional restriction against execution of mentally retarded offenders upon its execution of death sentences." In point of error fifty-one, appellant claims that "the statute under which [he] was sentenced to death is unconstitutional in violation of the cruel and unusual punishment prohibition of the Eighth Amendment because it allows the jury too much discretion to determine who should live and who should die and because it lacks the minimal standards and guidance necessary for the jury to avoid the arbitrary and capricious imposition of the death penalty."

In point of error fifty-two, appellant claims that "the statute under which [he] was sentenced to death" violates the Eighth Amendment "because the mitigation special issue sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerable and unreliable." In point of error fifty-three, appellant claims that "the statute under which [he] was sentenced to death" violates the due process "because it implicitly puts the burden of proving the mitigation special issue on appellant rather than requiring a jury finding against appellant on that issue under the beyond a reasonable doubt standard."

In point of error fifty-four, appellant claims that "the trial court erred in denying appellant's motion to hold Article 37.071 Sec. 2(E) and (F) concerning burden of proof unconstitutional as a violation of Article One Sec. 10 and Sec. 13 of the Texas Constitution." In point of error fifty-five, appellant claims that the "Texas death penalty scheme violates due process protections of the United States Constitution because the punishment special issue related to mitigation fails to require the State to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt, contrary to [Apprendi v. New Jersey, 530 U.S. 466 (2000)] and its progeny."

In point of error fifty-six, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments to the United States Constitution by requiring as least ten 'no' votes for the jury to return a negative answer to the punishment special issues." In point of error fifty-seven, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment, an impartial jury and to due process of law under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution because of vague, undefined terms in the jury instructions at the punishment phase of the trial that effectively determine the difference between a life sentence and the imposition of the death penalty."

In point of error fifty-eight, appellant claims that the "Texas death penalty scheme denied appellant due process of law, and imposed cruel and unusual punishment in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against the imposition of the death penalty." In point of error fifty-nine, appellant also claims that this also "denied [him] due course of law, and imposed cruel and unusual punishment, in violation of Article I, §§ 13 and 19, of the Texas Constitution."

In point of error sixty, appellant claims that "the trial court erred in overruling appellant's motion to hold Art. 37.071 Sec. 2(e) and (f) unconstitutional because said statute fails to require the issue of mitigation be considered by the jury." In point of error sixty-one, appellant claims that the mitigation special issue is "unconstitutional because it fails to place the burden of proof on the State regarding aggravating evidence."

In point of error sixty-two, appellant claims that the mitigation special issue is "unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution because it permits the very type of open-ended discretion condemned by the United States Supreme Court in [Furman v. Georgia, 408 U.S. 238 (1972)]." In point of error sixty-three, appellant claims that "Texas' statutory capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because it does not permit meaningful appellate review."

In point of error sixty-four, appellant claims that the "trial court erred in overruling appellant's second motion to set aside the indictment as being unconstitutional based on the enumerated constitutional defects of the Texas capital murder death penalty law." In point of error sixty-five, appellant claims that the "cumulative effect of the above-enumerated constitutional violations denied appellant due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution." In point of error sixty-six, appellant claims that this also denied him "due course of law under Article I, § 19, of the Texas Constitution."

In his brief, appellant asserts that:

[These] Constitutional Issues have been previously submitted to this Honorable Court; which previously has turned them down. Appellant submits these issues in this case not to cause unnecessary litigation but to invite this Court to review any prior stand on any issue and more importantly to preserve each issue for further review in the Federal Court system, which has final constitutional power of review.


We decline appellant's invitation to review our prior decisions on these issues. (30) Points of error fifty through sixty-six are overruled.

The judgment of the trial court is affirmed.


Hervey, J.


Delivered: June 6, 2007

Publish

1. See generally Saldano v. State, 70 S.W.3d 873 (Tex.Cr.App. 2002); Saldano v. Dretke, 363 F.3d 545 (5th Cir. 2004).

2. Appellant's death-row misconduct includes assaulting and threatening to kill guards, throwing urine and feces at guards, and setting fires. A death-row guard testified that appellant's death-row misconduct was a "daily thing."

3. See Lagrone v. State, 942 S.W.2d 602, 609-612 (Tex.Cr.App. 1997) (defendant's presentation of psychiatric testimony on future-dangerousness is a "limited" waiver of Fifth Amendment rights entitling State to compel defendant to an examination by State's psychiatric expert for rebuttal purposes "provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert") (emphasis supplied); Bradford v. State, 873 S.W.2d 15, 24-27 (Tex.Cr.App. 1993) (Campbell, J., dissenting) (same).

4. Point of error three states:


The trial court committed constitutional error by effectively barring mitigation testimony when it held that if [appellant] permitted a Lagrone examination by the State in order to present its expert testimony on mitigation the State could use its examination to present testimony on issues besides mitigation.

5. The record reflects that individual voir dire began on October 4, 2004. Appellant filed the written motion on October 21, 2004. The hearing on this written motion occurred on November 5, 2004. Individual voir dire also concluded on November 5, 2004. The punishment hearing commenced on November 10, 2004.

6. Appellant's October 21, 2004, motion was entitled:


Motion That The Court Rule: A) That Texas Code Crim. Proc. Art. 37.071 § 2(b)(1) Is Unconstitutionally Vague; B) That Texas Code Crim. Proc. Art. 37.071§ 2(b)(1) May Not Be Constitutionally Applied Under The Facts Of The Present Case; And Alternatively, Should The Statute Not Be Held Unconstitutional; C) In Limine To Exclude All Evidence Of [Appellant's] Conduct Subsequent To His First Trial In July 1996[.]

7. The procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial involved a state expert's use of race as one of several factors upon which this expert concluded that appellant is dangerous. This claim was procedurally defaulted because appellant did not object to this testimony thereby not providing the trial court or the State with an opportunity to correct the problem and remove the basis of objection. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Cr.App. 1998).

8. Appellant attached to his written motion Peccora's affidavit detailing appellant's alleged mental decline on death row.

9. Appellant's new written motion was entitled:


Motion That The Court Rule On All Aspects Of Defendant's Motion Of October 21, 2004 After Ordering Examination Of The Defendant Solely For The Purpose Of The Motion, And That The Court Order That The Hearing On The Motion Take Place Either At A Time That Takes Into Account [Peccora's] Personal Needs Or Post-Trial[.]

10. See Luce, 469 U.S. at 40 n.2 (using term "in limine" to "refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered").

11. The State also claims that it "could be argued" that appellant did not preserve error "because he did not call [Peccora] to testify and then object to the State's attempts to introduce its psychiatric expert."

12. Applying these principles to cases like this would also discourage a defendant from pursuing a strategy of "planting" reversible error in the record based on, for example, a ruling not to limit a Lagrone examination to rebutting the testimony of a defense expert whose testimony the defendant never even intended to present to the jury. See also Luce, 469 U.S. at 42 (requiring defendant to testify in order to preserve claim that prior conviction could not be used for impeachment "will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of conviction").

13. For example, appellant requests this Court to reverse his death sentence based on speculation that he actually would have presented Peccora's testimony and that a Lagrone examination would have resulted in the presentation of evidence unfavorable to him on the future-dangerousness special issue. It is also possible to speculate that a Lagrone examination might have revealed that appellant's misconduct on death row is due to appellant being a dangerous sociopath and not to any mental decline. It is possible to further speculate that this would have been relevant to rebut Peccora's testimony (if appellant had decided to present it) about appellant's mental decline while also showing appellant's future dangerousness. It is possible to even further speculate that the possible admission of this evidence under these circumstances would probably have been harmless depending on what else that we may speculate would have unfolded at appellant's trial. Of course, all of this is "wholly speculative." See Luce, 469 U.S. at 41.

14. The defendant in Lagrone also submitted to an examination by a state psychiatrist before complaining on appeal that he was required to do so. See Lagrone, 942 S.W.2d at 609-10.

15. The record also reflects that appellant used a peremptory challenge to remove veniremember Clampit after the trial court denied appellant's challenge for cause to Clampit. Appellant does not claim on appeal that the trial court erroneously denied his challenge for cause to Clampit.

16. See Long v. State 823 S.W.2d 259, 265 (Tex.Cr.App. 1991) (accepting a juror "under protest" arguably made her an "objectionable juror").

17. In his brief, appellant asserts that Garfield's "inclusion on the jury was a violation of Article 37.071, of the Tex. Code Crim. Proc.," which, according to appellant, "mandates that mitigation be considered in death penalty cases." There is case law stating that a conviction should be reversed "when the accused challenged a venireman for cause on the basis that he could not be a fair and impartial juror, the challenge was [erroneously] denied" and the venireman sat on the jury "because the accused had no remaining peremptory challenges to prevent it." See Delrio v. State, 840 S.W.2d 443, 445 n. 3 (Tex.Cr.App. 1992); Johnson v. State, 43 S.W.3d 1, 12-14 (Tex.Cr.App. 2001) (Hervey, J., dissenting).

18. This portion of the voir dire record seems to indicate that Garfield might have drawn some adverse inference from appellant's failure to testify. Shortly thereafter, Garfield stated that "the defendant not testifying would not play-would not play a role" in his decision.

19. In his brief, appellant claims that the trial court erroneously admitted State's Exhibits 50-52 and 54-60. The record, however, reflects that appellant did not object to the admission of State's Exhibit 60. In addition, appellant did not include State's Exhibits 50-52 as part of the record on appeal. These exhibits are, however, adequately described in the record and in the parties' briefs.

20. Among other things, the State claimed:


We're at the punishment phase. This jury didn't hear the guilt-innocence. We're establishing cause of death; we're also establishing the defendant is a future danger in that he wanted to make sure that this defendant [sic] was dead by shooting him five times, as well as the contact wound to the head, and this is best illustrated by showing these pictures to the jury.

21. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Cr.App. 1991) (photographs generally admissible if verbal testimony of matters depicted in them is also admissible).

22. See Lane v. State, 933 S.W.2d 504, 507 (Tex.Cr.App. 1996) (opinion of police, derived from their observations of a defendant, about that defendant's character and likelihood of future violence, is some evidence of future-dangerousness).

23. See also Garcia v. State, 126 S.W.3d 921, 924-25 (Tex.Cr.App. 2004) (prosecutorial comment concerning defendant's lack of remorse supported by police observations of in-custody defendant as "cocky" and as "very nonchalant, very laid back and calm . . . There were several things that had a tone of arrogance to it").

24. The record actually reflects that, during a hearing outside the jury's presence, appellant's counsel stated that he had "no legal valid objection" to Pero's testimony. Appellant's counsel later confirmed this when Pero was about to testify before the jury.


[THE COURT]: Because I think I'm going to admit Pero's testimony. You had no objection to it.


[THE DEFENSE]: Well, not a legally valid objection. I object to it just because I think it's-it's-I don't like any prejudicial evidence introduced against the defendant.


[THE COURT]: I certainly don't disagree with you on that.


[STATE]: I'm sorry. I didn't hear anything. What?


[THE COURT]: He just objects generally to any prejudicial evidence.

25. And, during closing jury arguments, the State argued:


Even if [appellant] didn't [kill three people in Oak Cliff], even if it's just a statement, what does that tell you about his state of mind? Middle of his own capital murder trial, tells the bailiff, you know, I killed three people in Oak Cliff.

26. The Court assumes that the reference to the future-dangerousness special issue is a mistake.

27. In his brief, appellant provides the following argument in support of point of error forty-seven:


Appellant argues that the trial court erred in instructing the jury to decide any issue of fact that was not alleged in the indictment returned against the Defendant. Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). Specifically, the Defendant would object to the jury being asked to determine whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background and the personal moral culpability of the defendant there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. The lack of a mitigating circumstance is not alleged in the indictment and accordingly the jury should not be asked to decide the question. The court should find that the case is one in which the state cannot seek the death penalty and sentence the Defendant to life in prison pursuant to [Article 37.071(1), Tex. Code Crim. Proc.]."

28. The record, however, reflects that the jury was instructed that it could not consider extraneous offenses unless it found beyond a reasonable doubt that appellant committed them.

29. The State claims that the record does not support appellant's factual assertions under point of error forty-nine and that points of error twenty-five through forty-eight present nothing for review because they are inadequately briefed. See Tex. R. App. Proc. 38.1.

30. See, e.g., Perry v. State, 158 S.W.3d 438, 446-49 (Tex.Cr.App. 2004), cert. denied, 546 U.S. 933 (2005); Russell v. State, 155 S.W.3d 176, 183 (Tex.Cr.App. 2005); Escamilla v. State, 143 S.W.3d 814, 827-29 (Tex.Cr.App. 2004), cert. denied, 544 U.S. 950 (2005); Rayford v. State, 125 S.W.3d 521, 532 (Tex.Cr.App. 2003); Hughes v. State, 24 S.W.3d 833, 844 (Tex.Cr.App. 2000); Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Cr.App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Cr.App. 1999); Pondexter v. State, 942 S.W.2d 577, 587 (Tex.Cr.App. 1996).